Digest: Judges may participate in a settlement project sponsored by the local
bar association where judges will attempt to settle cases referred by the
court.

Rules: 22 NYCRR 100.5(e); Canon 5 of the Code of Judicial Conduct

Opinion:

A judge inquires whether judges may serve as mediators in a program
sponsored by the local county bar association. The purpose of the project is to help
settle cases. During the designated “Settlement' Week”, no civil trials will be held
and, instead, cases deemed suitable for settlement will be referred to the program by
the judges sitting in civil parts. Judges will be asked to serve as mediators, without
additional compensation, in cases that are not from that judge’s calendar.

Canon 5(E) of the Code of Judicial Conduct provides that, “A judge should not
act as an arbitrator or mediator.” However, Canon 5 and section 100.5 of the Rules of
the Chief Administrator, which also prohibits a judge from serving as an arbitrator or
mediator, cover areas of extra-judicial activities. Thus, section 100.5(e) and Canon
5(E) intend to proscribe only judicial arbitration or mediation in private matters
outside the judicial process. The project here does not fall into that category.

In the instant situation, the cases involved are actually pending court cases.
The format of the program appears to differ little from the type of settlement
conferences judges often hold in civil cases in attempting to resolve litigation. The
involvement of the bar association and attorneys in the process is undoubtedly
designed to emphasize the importance and desirability of settling litigation and to
engender the cooperation of all parties toward that end.

In sum, there does not appear to be any ethical reason for prohibiting judges
from participating in this project, which is essentially a court proceeding with a
somewhat novel procedural format and is directed toward improving the
administration of justice. However, the Committee recommends, to avoid any
misunderstanding by the public, that the sponsors of the program consider the
feasibility of using terms other than “mediator” or “arbitrator” to describe the
function that the participating judges will undertake.